Electronic Signature Laws & Regulations - England & Wales

Note:

At the time of writing, the UK is in the Brexit transition period, which is governed by the European Union (Withdrawal Agreement) Act 2020. During this time, the UK is subject to Regulation No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS). eIDAS will cease to have effect from the withdrawal date (currently anticipated to be 31 December 2020). During the transition period, the UK and EU will negotiate the future UK-EU relationship and so the position relating to e-signatures may, therefore, be subject to further change.

The UK Government intends to incorporate an amended form of the existing eIDAS rules on digital and e-signatures into domestic law after the withdrawal date, the Electronic Identification and Trust Services for Electronic Transactions (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/89) (Trust Services Brexit SI) which amends and removes certain provisions around trust services that will no longer apply following the UK’s departure from the EU (such as mutual recognition).

For more information on eIDAS, please read the Electronic Signature Laws & Regulations in the EU.


Overview

In accordance with the above, the eIDAS Regulation is currently directly applicable under English law and sets out minimal, not maximal, standards for e-signatures. Accordingly, it has had a limited effect on pre-existing English law, given the already broad definition of simple electronic signatures that had been adopted under the ECA (defined below), the admissibility of these as evidence in court under the ECA, and the rare use of qualified electronic signatures.

Next to eIDAS, the Electronic Communications Act of 2000 (ECA) is the main legal instrument regulating the use of electronic signatures in England & Wales. In 2016, the UK also enacted the Electronic Identification and Trust Services for Electronic Transactions Regulations 2016, which amended relevant sections of the ECA that dealt with electronic signatures under the previous regime.

Additionally, in 2019, the Law Commission (an independent commission set up by Parliament to review the law of England and Wales and to recommend reforms) published a report on electronic execution, which was intended in particular to address legal uncertainties concerning electronically executed documents. This was endorsed by the UK Government in March 2020.

 Under English law, contracts may be made orally, in hard copy or electronically, provided that:

1. the key elements of a contract are present (offer, acceptance, consideration, certainty of terms and an intention to create legal relations); and
2. appropriate formalities or execution procedures are followed in certain cases (this is particularly relevant to deeds).

Simple contracts can therefore be validly concluded with an electronic signature (assuming the parties do not agree otherwise) because there is no legal requirement for a signature in the first place. Simple contracts can be made by various forms of electronic communication, including email, website order/acceptance procedures, fax and text messages and it is permitted to exchange/complete legal documents by email or fax (without the need for “wet” signatures).

 The Law Society (2016) and the Law Commission (2019) both confirmed that an electronic signature can be used to validly execute a document if:

(i)    the person signing the document intends to authenticate the document; and

(ii)   any execution formalities are satisfied.

English law has a broad definition for e-signatures and does not in itself distinguish between various types. Section 7(2) of the ECA stipulates that “an electronic signature is so much of anything in electronic form as is incorporated into or otherwise logically associated with any electronic communication or electronic data and purports to be used by the individual creating it to sign”.

The Law Commission recently decided against prescribing the use of digital signatures as a distinct subset of electronic signatures. However, it noted the prevalence of digital signatures in civil law jurisdictions. From an England & Wales perspective, however, there is no clear distinction, and the term “electronic signatures” is used to include digital signatures.

The ECA states that in “any legal proceedings, an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic data, and the certification by any person of such a signature, shall each be admissible in evidence in relation to any question as to the authenticity of the communication or data or as to the integrity of the communication or data”.  Accordingly, English courts accept documents bearing an e-signature as prima facie evidence that the document is authentic.

The ECA does not directly address the evidential weight to be given to an e-signature. As a result, if the authenticity of an e-signature is challenged, the courts will determine, on a case-by-case basis, whether the e-signature has been correctly used and what weight it should be given against other evidence. In this respect, it is similar to wet-ink signatures. The evidential weight to be assigned to a particular e-signature will, to a large extent, depend on the integrity of the e-signature system employed.

Note:

EU Member States have the obligation to establish, maintain and publish trusted lists of Qualified Trust Service Providers (QTSPs) and the qualified trust services provided by them. A QTSP certified in any EU Member State will be recognized as a QTSP by all other Member States. Accordingly, no EU Member State may question the qualified status once a QTSP has been added to the trusted list by the supervisory authority of another Member State. In the UK, tScheme trust services hosts and maintains the UK’s Trust  List of service providers  on behalf of the Government’s Department for Business, Energy and Industrial Strategy.


Special considerations

In general, there are no laws in England and Wales that prohibit the storage and processing of electronic signature data outside of the UK. However, the EU General Data Protection Regulation (GDPR) is currently applicable in the UK.

Transacting with public sector entities

The Law Commission Report states that the use of electronic signatures should not be mandated and should be for a public body to decide whether it wishes to utilize them.

Use cases that generally require a traditional signature

Despite the Law Commission’s guidance, there are circumstances in which it may not be appropriate to use electronic signatures. Electronic records and signatures may not be used for:

  • wills;
  • registrable dispositions (real estate property documents) that must be submitted for registration with the Land Registry and the Land Charges Registry (with the exception of electronic mortgage deeds, which can be registered using the Land Registry’s digital mortgage service);
  • some documents such as company accounts to be registered with Companies House outside its online web-filing service;
  • negotiable instruments (such as bills of exchange, promissory notes and chattel mortgages); and
  • powers of attorney or statutory assignments.
  •  deeds that are being witnessed or used in the context of UK real estate

Additionally, where the original version of a document needs to be filed/registered at or sent to a registry/authority, it is recommended that “wet” signature originals are provided, for example, in respect of the registries set out below:

  • HM Land Registry and Land Charges Registry;
  • Companies House (although Companies House generally accepts electronic signatures via its online filing service);
  • HM Revenue and Customs, where stamp duty is payable on a document;
  • Stamp Office (for adjudication); and
  • Office for the Public Guardian (for lasting powers of attorneys).

Certain other documents are subject to specific formalities imposed by statute or case law, including that the document to be “in writing”, “signed” and/or “executed as a deed”. These include guarantees (which must be signed and in writing) and legal mortgages or charges by way of legal mortgage over land (which must be executed as deeds).

Note:

Disclaimer: Information on this page is intended to help businesses understand the legal framework of electronic signatures. However, Adobe cannot provide legal advice. You should consult an attorney regarding your specific legal questions. Laws and regulations change frequently, and this information may not be current or accurate. To the maximum extent permitted by law, Adobe provides this material on an "as-is" basis. Adobe disclaims and makes no representation or warranty of any kind with respect to this material, express, implied or statutory, including representations, guarantees or warranties of merchantability, fitness for a particular purpose, or accuracy.

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